Joseph Njogu Ngoya v David Ngoya Njogu & 2 others [2020] KECA 652 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that inherited property and assets bought after separation are not matrimonial property, wiping out a widow's awarded shares.
What this practically means
#Executive summary
#Key legal issues
#Whether LR. Dagoreti/Kangemi/253 was matrimonial property
No. The property was purchased and developed by the appellant's mother before and during the marriage but in her sole name, and the appellant inherited it through succession proceedings to which the deceased raised no objection.
The seller, Thairu Mubea, testified that he sold the land to the appellant's mother in 1960, before the marriage, and never received money from the deceased. The Green Card confirmed the mother as registered proprietor. The deceased produced no documentary proof of contribution and never raised her claim during the mother's lifetime. The appellant inherited the property through Succession Cause No. 2300 of 2000, and inherited property cannot be matrimonial property.
Whether motor vehicle registration number KRM 111 was matrimonial property
No. The appellant bought it in 1993, about seven years after separation, and the deceased failed to prove she had bought the earlier vehicle KBS 22 whose sale allegedly funded its purchase.
The only evidence linking the deceased to vehicle KBS 22 was a photograph of her daughter leaning on an unidentified vehicle whose registration number was not visible. The deceased produced no registration book or purchase documents for KBS 22. With the marriage dissolved and the purchase made long after separation, the vehicle could not be matrimonial property.
Entitlement to a share of the suit property and motor vehicle
The deceased was not entitled to any share; the High Court's award of 80% of the land, 50% of the vehicle's value and 80% of rental income was set aside.
Since neither the land nor the vehicle was matrimonial property, no share arose. The Court also noted that a division of matrimonial property must be decided after weighing the peculiar circumstances of each case, citing Francis Njoroge v Virginia Wanjiku Njoroge. The deceased's shifting case, at variance with her pleadings and unsupported by documents, could not sustain the trial court's findings.
Duty of a first appellate court
A first appellate court must reconsider and evaluate the evidence afresh and draw its own conclusions, bearing in mind it did not see or hear the witnesses.
Relying on Selle & Another v Associated Motor Boat Company Ltd [1968] EA 123, the Court restated that an appeal to it is by way of retrial: findings of fact by the trial court are not binding, though due allowance is made for the appellate court's inability to observe witness demeanour.
Legal principles established
#- Property inherited by a spouse pursuant to succession proceedings, having been purchased by the deceased owner before the marriage, cannot be described as matrimonial property.
- Property purchased by one spouse long after separation and dissolution of the marriage, with no evidence of the other spouse's contribution, is not matrimonial property.
- Parties are bound by their pleadings; a claim cannot materially change through subsequent affidavits without amendment of the originating process.
- On a first appeal, the Court of Appeal re-analyses and re-assesses the evidence and reaches its own conclusions, while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal allowed
- 2.High Court judgment set aside and substituted with an order dismissing the Originating Summons
- 3.Each party to bear its own costs of the appeal as well as costs in the High Court
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C. No. 12 of 2006 (O.S)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statute not specified in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Joseph Njogu Ngoya v David Ngoya Njogu & 2 others [2020] KECA 652 (KLR)", Case Analysis (2020). Civil Appeal No. 90 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/652/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.